The prison governor, the notice and the question of compensation
Christmas is coming, the geese are getting fat,
Please to put a penny in the old man's hat;
If you haven't got a penny, a ha'penny will do,
If you haven't got a ha'penny, God bless you.
Beggar's Rhyme -- Traditional
22 December 2002; revised 10 March 2003
QUITE WHEN THE Beggar's Rhyme was first written - or spoken - is lost in the
mists of time. But it would be generally agreed that these days a penny or
a halfpenny would not go very far towards solving the problems of anyone
who is financially disadvantaged. How much more generous it would be, and
how much more in keeping with the modern Christmas spirit, if what was in
question was the prospect of tens of thousands of pounds. Or even of a
hundred thousand pounds.
THE QUESTION OF WHETHER multi-party actions of this kind should be advertised at all is, given the rules which currently govern such civil actions, a more difficult one. This is principally because there can be occasions when solicitors are actually compelled to ‘advertise’. Many group actions are subject to a Group Litigation Order made by the Lord Chief Justice. When making such an order the Court is not obliged to direct that an action should be publicised but it does have a discretion to do so. (Civil Procedure Rules 1998, Part 19.11).
It is often suggested that one of the purposes of making such an order is to ensure that nobody who has a legitimate claim should miss the opportunity to obtain compensation simply because they are unaware that a group action is in progress. However, since the Court has the power to admit new claims after the formal ‘cut-off’ date has passed, and since it would be theoretically possible for a new and separate action to be started at a later date, this is not the complete explanation. It seems that the rationale for the rule is a managerial one and that it seeks to render group-claims more efficient and more economical by attempting to ensure that all the sheep are led by one shepherd into one pen. This certainly is the view adopted in the authoritative commentary offered on this portion of the Civil Procedure Rules in the White Book:
Rule 19.11 (3) (c) and the
practice direction (paragraph 11) cover publicising a Group Litigation
Order. The intention is to enable the court to order the solicitors for
the group to ‘advertise’ the making of the order and any cut-off dates for
joining the register to minimize the risk of individuals trying to start
their own separate proceedings at a later date. But neither the rule nor
the practice direction give guidance on the form of any publicity, or on
who might be ordered to pay the costs of placing the appropriate
practice it may be difficult for individuals, or small groups of
litigants, to obtain sufficient public funding to make an action viable at
a point after a large group action has already gone through the courts,
the cut-off dates set by a court for entry into a group action are
significant and publicising them may seem to be justified on these
The argument is certainly not one that applies to all cases, for, as has already been noted, cut-off dates are by no means always, as their name suggests, final deadlines. It is a matter of some interest that the website of the specialist firm of solicitors headed by solicitor Peter Garsden lists a number of group actions where cut-off dates passed as long ago as May 1999. In several of these cases, however, it is specifically indicated that ‘new cases are always considered’.
While recognising that there was sometimes a need both to set cut-off dates for joining group actions and to publicise these, he also pointed to the arguments against doing this in certain cases. At one point he notes that ‘The desire of defendants to know the scale of the action they face leads to the setting of cut-off dates which in turn can cause the swamping of valid claims with weak or hopeless claims’ (17.11). Expanding this point he notes that ‘early cut-off dates tend to result in a rush to register which encourages many weak or hopeless claims to be registered and inflates the pool of potential claimants. The bandwagon effect may raise unrealistic hopes of compensation from claimants (17.44)
notes that in certain kinds of action there tends to be a high proportion
of doubtful claims: ‘the bandwagon effect, in cases such as
benzodiazepine, has the effect of swamping stronger claims with a host of
weaker claims, many of them with very questionable foundation, and making
the action as a whole unviable.’ (17:52,
It is precisely because such concerns are evidently well-founded that any firm of solicitors might be expected, wherever they have the freedom to do so, to exercise extreme caution when considering whether to publicise group actions which relate to alleged acts of sexual and physical abuse many years ago. Whereas many group actions (such as, for example, those which related to thalidomide) are fought on behalf of people whose status as victims is clear and objectively verifiable, claims involving ‘historical abuse’ are of a quite different order. In such cases there is usually no objective evidence at all that complainants have suffered the abuse they allege; usually the only form of strong corroboration for such claims (which is itself often not available, and which is also not always reliable) is found in the confessions or guilty pleas of those who are accused of perpetrating the abuse.
Because of the lack of any objective test, it is extremely difficult either for the solicitors acting in a group action, or for the Legal Service Commission officers who are responsible for allocating funding to them, to reliably filter out false claims. Psychological reports, although sometimes credited with this role, certainly do not in practice fulfil it. Medical reports based on vaginal or anal examination are usually irrelevant to such long-delayed allegations.
that, for all these reasons, the gates of the civil courts are already
wide open to fabricated claims in such cases, it might well be argued that
any firm of solicitors which was acting responsibly should refrain
from any action which might conceivably encourage more false claims. There
is certainly a powerful argument for deciding that group actions
concerning allegations of abuse should never be advertised. There
is a specially strong case for not advertising them in prisons where it is
widely recognised that there is a strong compensation culture and where
dishonesty and fabrication are, for reasons which should be obvious,
After referring to the evidence which had been given to them on such matters, the Committee said this in their report:
The risk that the prospect of compensation might induce some individuals to give untruthful evidence is said to be compounded by a number of factors. First, the almost open invitation, given by the police during a trawl, to make an allegation of past abuse. Secondly, the advertisement by solicitors of civil compensation actions and awards. Thirdly, the working relationship that has been established between certain firms of personal injury solicitors and police forces. Finally, the conduct of group litigation, in civil compensation actions, is said to leave little opportunity for scrutiny in each individual case (Paragraph 101).
The committee went on to make it clear that they regarded the risk of compensation-induced false allegations as a real one. After criticising the ruling in a recent case (Lister v Hesley Hall Ltd) they said:
… we believe that by opening the door to ‘no fault’ liability in civil compensation actions, the ruling may further encourage unscrupulous individuals to make false allegations, in the hope of receiving substantial awards of financial compensation (Paragraph 120).
During one of the evidence sessions Bridget Prentice MP specifically raised the issue which would surface a month later in Wakefield:
We have had evidence that suggests that solicitors advertise civil actions in prison, even in the prison magazine …I have strong views on these compensation things. Do you think there is anything the Government, the Lord Chancellor's Department or someone should be doing about that type of advertising? Or the Law Society? Whoever? (Tuesday 14 May 1990)
very many observers are, this MP was clearly horrified by the very
possibility that such advertising might be conducted in prisons. She would
almost certainly have been even more shocked had she been aware that the
Governor of a prison might himself post such advertisements on the prison noticeboard.
solicitors must bear some responsibility for this, it would be quite
wrong, I believe, to expect them to shoulder all the blame, or even the
major part of it. In the first place it is quite clear that it is not they
but the civil courts who have created a culture in which the advertising
of group actions and the availability of compensation is regarded as being
both normal and generally desirable. The proper caution expressed by Lord
Woolf in parts of his report was perhaps never given the kind of
prominence it merited and it certainly has not been embodied in the rules
which have subsequently been put in place.
ONE OF THE FACTORS
which can only exacerbate the problem is the manner in which solicitors
conducting group actions are remunerated. Because they are paid for each
individual client they represent, it is clearly in their interests to find
as many new clients as they are able to. The system of legal aid currently
in place means that solicitors fund their work in the pre-trial or
pre-settlement phase of the case through certificates issued to them by
the Legal Services Commission in relation to cases which are judged as
having merit. These certificates in effect underwrite the expenses which
the claimants’ solicitors incur while preparing the action and guarantee
that they will at least receive some payment at the conclusion of the
action even if it is not ultimately successful. In some cases interim
payments are actually advanced to solicitors before the case has in fact
firms have even begun to specialise in dealing with allegations of abuse.
Peter Garsden, is a Cheshire-based solicitor who specialises in obtaining
compensation in ‘historical’ sexual abuse cases. He runs the largest
specialist department dealing with such claims in the country. It is
currently co-ordinating some 800 different individual cases, half of which
are being dealt with directly by the firm itself. In this case the legal
aid funding apportioned to a single firm will almost inevitably run to
several million pounds.
He explained that what was meant by this was that, because the work he was engaged in was difficult and responsible, he and his firm would be entitled to charge for it at a higher rate than they would charge for other kinds of legal work:
I am talking about the fact these cases carry with them an extra degree of responsibility both to the victim, to the expert, to the court, and in every other way they are very difficult and very responsible types of cases. It is very difficult to find people who do that type of work. Because the degree of responsibility and the amount of care required is greater, we are entitled to be paid more money for it (436).
solicitor who acts for defendants in these actions has said that the
mark-up applied to the standard legal aid rate can be as high as 150% and
that in some very exceptional cases, where the issue has gone to trial,
legal costs can amount to as much as £100,000 for an individual case. Most
cases result in much lower legal costs than this but the same solicitor
generally advises defendants in such actions to allow, on average, £25,000
per individual claimant. Since this figure would include barristers’ fees
and other costs, it should certainly not be taken to represent the total
remuneration paid to the solicitor. But this figure will clearly remain a
If there is any shortfall between the amount of costs I have incurred and the amount I am paid by the defendant, the shortfall is made up out of the claimants’ damages …
Garsden immediately added: ‘though we try very hard not to do that and it is more or less a policy decision that we do not do it, we would have to stand the loss’ (553)
theory, however, it seems clear from his evidence that precisely this
option remains open. Even without allowing for such a final adjustment,
under which solicitors would be paid in part out of damages awarded to
their clients, one solicitor who represents defendants in these cases has
observed that lawyers sometimes receive twice as much money in costs as
the clients they represent receive in damages.
PERHAPS THE SINGLE MOST important factor, however, in the system through which claimants’ solicitors in these cases are remunerated, is that there is no real financial incentive to expose false allegations. A solicitor who uncovered a fabricated allegation would either receive no legal aid at all in respect of such a claimant, or, if a certificate had already been granted, would be remunerated on the same basis as if the case had been lost. Since solicitors’ firms must, if they are to continue to serve their clients well, succeed in maintaining their own profitability, they can hardly be expected to invest the massive amount of time and money which would be required to test out claims exhaustively or to make a concerted effort to uncover allegations which are false.
Given the large number of false allegations which appear now to be in circulation, any solicitors who adopted such an approach might rapidly undermine the financial viability of their departments or even, in the case of specialist ‘niche’ solicitors, of their firms. By so doing they would actually be letting down those among their clients whose claims were genuine.
For this reason solicitors handling such claims actually find themselves ensnared within a system which is inimical to an even-handed, properly investigative approach to the very serious allegations with which they are dealing.
The effects of such a system on claims in the different but related sphere of medicine and medical negligence have been trenchantly described by Dr Anthony Barton:
Most healthcare claims are legally aided because of their cost and
complexity. Civil legal aid is fundamentally flawed. First, funding is
granted on the advice of the applicant’s lawyer who has a financial
interest in advancing the case - a clear conflict of interest creating
perverse incentives to pursue unmeritorious cases. This is amply borne out
by the near zero success rate in drug claims against the pharmaceutical
industry, and that most clinical negligence cases fail - too often the
only beneficiaries of legal aid are lawyers. Second, the usual ‘loser
pays’ rule of litigation doesn't apply to an unsuccessful legally aided
litigant who is in a no lose position while the defendant is in a no win
position. Cases may be settled by defendants regardless of merit to avoid
irrecoverable legal costs, a practice described as legal aid ‘blackmail’
in Parliament and by the Bar Council. The effect of this rule was
described by the House of Lords as unfair. It also arguably infringes the
right to a fair trial under Article 6 of the Human Rights Act.
Furthermore, because the reasons for funding decisions are privileged and
confidential, the legal aid system is unaccountable to Parliament, to the
courts and to the public.
… Most litigated claims are unsustainable because legal aid is awarded
with scant regard for merit. We can all reasonably wonder at the
relationship between litigation, liability and compensation. For example,
the benzodiazepine tranquilliser case involved thousands of claimants and
cost over £40 million in legal aid without a penny obtained in
Precisely because a very significant majority of sexual abuse cases, unlike the benzodiazepine tranquilliser cases, actually succeed, the words quoted here cannot and should not be applied directly to the manner in which this very different kind of claim is pursued. It should also be noted that Dr Barton’s analysis, like most analyses inspired by extreme economic liberalism, leaves little if any room for motivations other than the profit-motive.
problem in the sphere of sexual allegations is that the non-economic
motivations of the professionals involved, which can undoubtedly be
immensely powerful, far from counterbalancing the financial factors, may
actually serve only to magnify their effect.
In many cases, allegations which might be exposed as untrue in the criminal courts are either accepted as true by the civil courts, or, more frequently, are not contested at all by insurance companies on the grounds that to oppose them would be bad policy or might be too expensive, or might result in unfavourable publicity. Although the presumption of veracity has been challenged more frequently in the last two years (not least by the Home Affairs Committee), it is still immensely strong.
it remains true that a significant proportion of the individual claims
handled by solicitors are well-founded. But there is evidence which
suggests that a very substantial number – perhaps far more than most
laymen or lawyers would imagine –
It is for
all these complex reasons, in which financial, psychological and cultural
factors are intermeshed, that some personal injury solicitors who
specialise in historical abuse appear to have developed a particular
mind-set. As a result it sometimes seems that they quite genuinely cannot
understand the gravely dangerous nature of the work they engage in or the
huge scale on which retrospective allegations relating to care homes are
currently being fabricated. In particular they cannot understand the
extent to which, by unknowingly fuelling false allegations through the
successful financial claims they repeatedly make in relation to them, they
have actually helped to undermine the very process of justice they
sincerely believe they are upholding.
THE FACT THAT THE episode involving the posting of the Tennal notice in Wakefield
prison should have taken place even after the publication of the Home
Affairs Select Committee report does not, it would seem, indicate a
cynical disregard for the findings of this all-party committee of MPs. It
seems much more likely that it indicates the passionate sincerity with
which those engaged in the business of seeking compensation on behalf of
‘survivors’ believe in their own vocation and the justice of their mission
to secure compensation for those who make retrospective allegations.
However the Committee are obliged to record that, in the course of exploring this possible route to reform, they found that it might well be blocked by existing European human rights legislation which guarantees the right to a fair trial. Partly because of this they did not recommend what might have been one of the most effective solutions to a problem which seems otherwise intractable.
episode involving the Governor of Wakefield prison and a firm of
solicitors, who no doubt acted in part because of good intentions of their
own, indicates just how serious that problem remains.